By Josh Hong (13/8/2010, Malaysiakini)
While saddened that the Singapore president may eventually reject clemency for Yong Vui Kong, the convicted drug trafficker from Sabah, I am in some way heartened by the fact that the case has attracted much public attention and ignited debate on the ideas of crime, justice and punishment in some circles.
Despite the many negative responses and counter-arguments that I have received so far, I remain steadfast in my position that Yong’s crime does not deserve the ultimate punishment, let alone a mandatory one.
Lest I be misunderstood, the Singapore authorities are right to impose a set of laws to deal with the serious issue of drug trafficking, and Yong indeed committed a crime that could have profound ramifications on the lives of others. Still, the case has triggered several issues that need to be discussed and addressed in greater depth and clarity before one should jump to the conclusion that the death penalty handed out on Yong is justified and “proportionate”.
First, on realising that Yong had been misled by others and was too young to appreciate the consequences of his crime, the presiding judge took the liberty to call Jaswant Singh, the deputy public prosecutor (DPP), to his chamber and asked if a lesser charge was possible so as to avoid mandatory death. The DPP showed no mercy and it would seem that the authorities clearly wanted Yong dead.
Second, K. Shanmugam, the Law Minister, spoke publicly against clemency for Yong in early May, blatantly in breach of the constitution. Given numerous legal wars waged by Lee Kuan Yew, Lee Hsien Loong and Goh Chok Tong against vocal critics in the past, I am deeply puzzled as to why many Malaysians still believe there is a clear separation of powers in Singapore.
Burden of proof is reversed
Among the areas that I have grave concerns with is that when it comes to drug-related offences, the burden of proof in common law is reversed and the prosecutor is entitled to presume the accused guilty unless proven otherwise. This is the case with both Malaysia and Singapore. (The United Kingdom now has the same practice under its Drugs Act 2005 but at least the country now prohibits the death penalty under all circumstances.)
Yong is a school dropout and could barely read English. Denied access to legal counsel before the trial began, he had no way to find out what the charges and possible sentences would be. Yet he was required to prove his innocence!
One may find it incredulous that Yong was not aware of the harsh law in Singapore. The fact is, I have personally encountered a good number of middle-class, well-educated Malaysians who did not know a legal work permit for foreigners can only be issued by the Malaysian authorities, not any NGOs or UN agencies!
The mandatory death penalty is inhumane, for it compels the judge to send an accused to death regardless of his/her background and circumstances.
In 1993, Rozman bin Jusoh, also a Malaysian and a school dropout, was “tricked” into selling cannabis to an undercover officer from Singapore’s Central Narcotics Bureau. During his trial, the judge found Rozman to be “mentally subnormal”; other evidence also pointed to the accused’s inability to communicate properly. Since it would be unsafe to proceed with the charge of trafficking, the judge convicted him of the lesser offence of possession and sentenced him to seven years’ imprisonment.
As always, the prosecution appealed and the appellate court reversed the previous findings and sentenced Rozman to hang simply because it was mandatory, making considerations for his lack of mental soundness ‘irrelevant’. Rozman was hanged in April 1996 and his tragedy failed to be noted by Malaysians as we generally are indifferent to the plight of the underprivileged, but because Malaysia has harsh and inhumane drug laws also.
‘One death can save the lives of many’
What worries me most now is the seemingly pervasive opinion among Malaysians that only tough measures can deter drug offences, and that the Singapore president must not show compassion on Yong and risk opening the floodgates. These death penalty advocates are convinced one death can save the lives of many.
It has been nearly three decades since Malaysia first launched its anti-dadah campaign, but the country is confronted with more drug-related social ills today. Dozens, if not hundreds, have been hanged, including foreigners, over the years, and the effectiveness of these deaths is negligible.
Corruption, a cracking education system, uneven economic development, lack of social welfare support, and the appalling and dehumanising institutions such as prisons and rehabilitation centres are the core factors why the anti-dadah campaign has become a futile exercise.
Even in Singapore, drugs continue to flood in. While better managed and under control, the numbers of drug users rose by 600% between 2006 and 2007 according to a Straits Times report in January 2008.
All this brings me to ponder on the question of restorative justice, and I am indebted to a death penalty abolitionist from Taiwan who enlightened me to the practice at a recent forum.
While retributive justice focuses on the offender, with laws and punishment being the core values, restorative justice emphasises on the offender, the victim and the wider community.
In countries like Germany, Australia and New Zealand, mechanisms are already in place to app
ly restorative justice, encouraging the offender to repent and to seek forgiveness from the victim. In return, the victim and the general public are counselled to forgive and to assist the offender in rehabilitation and reintegration so that he or she may become whole again psychologically.
Not based on vengeance and punishment
This is a justice that reconciles and heals, and is based on the principles of forgiveness, atonement and restitution, rather than vengeance and punishment.
Hannah Arendt, a German political theorist of Jewish origin, said in the aftermath of the Second World War that “the problem of evil will be the fundamental question of postwar intellectual life in Europe. She was right.
Fully aware of their own inertia and failure to prevent the massive killings exacted by the Nazi regime, many European countries went on to introduce laws that would protect future refugees. The death penalty was also abolished in the latter years to minimise miscarriage of justice.
Most importantly, the darkest chapter in the modern European history prompted many to confront self-righteousness, and started to look into ways to ensure the state would safeguard and enhance the interests of even the most insignificant weak minorities in society. Are we surprised that in cities like Munich and Vienna, cases of murders and rapes are rare despite the lack of the death penalty?
One may condemn Yong to one heart’s content, but we must be careful not to become so self-righteous, legalistic and overwhelmed by our moral certitudes, and think that the underlying factors that contributed to the misdeeds of people like Thiru Selvam, Rozman and Yong did not matter. Without a holistic approach, both Singapore and Malaysia will only continue to hang the “mules” and let go of the real kingpins.
When meting out punishment, we must bear in mind justice is supposed to be a power that heals, restores and reconciles, rather than just hurts, punishes and kills.
Yong has clearly expressed his remorse, and all that I humbly ask is a chance for him to be spared the ultimate punishment. The Singapore authorities can still keep him in jail and monitor his behaviour for the longest period possible, but I am certain a life-changing process on the part of Yong will touch many more lives, the draconian, degrading and spiritually dark conditions of the prison notwithstanding.
Yong is ready to reconcile with the people of Singapore and his fellow Malaysians, are we willing to show him compassion and restore the broken relationship?
The prison authority in Singapore also says it will not allow the heart sutra written by Yong to see the light of the day even after execution. Why? Is it afraid that these religious writings may awaken more people that an alternative measure to death penalty is possible, as some Singaporeans have been bravely campaigning for?